Citation Nr: 0615711
Decision Date: 05/31/06 Archive Date: 06/06/06
DOCKET NO. 04-24 747 ) DATE
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On appeal from the
Department of Veterans Affairs Regional Office in Manila,
the Republic of the Philippines
THE ISSUE
Entitlement to accrued benefits.
ATTORNEY FOR THE BOARD
A. A. Booher, Counsel
INTRODUCTION
The veteran served on active duty from November 1941 to
October 1942 and from August 1945 to February 1946. He was a
prisoner of war (POW) of the Japanese Government from April
1942 to October 1942. The appellant is the veteran's
surviving spouse.
This matter came to the Board of Veterans' Appeals (Board) on
appeal from a rating decision by the Department of Veterans
Affairs (VA) Regional Office (RO) in Manila, Philippines.
For purposes of clarification, it is noted that the
appellant's initial claim for service connection for the
cause of the veteran's death was denied by the Board in
December 1984.
In a June 1999 decision, the RO granted the appellant's claim
to reopen the case, considered the claim de novo, and
continued to deny the claim on the substantive merits. The
appellant filed an appeal with the Board.
In November 2002, the Board made the following Findings of
Fact:
1. The Board denied the appellant's claim
for service connection for the cause of
the veteran's death in December 1984.
2. The primary basis for the Board's
December 1984 denial of service
connection for the cause of the veteran's
death was that the cause of the veteran's
death was nonservice- connected heart
disease, which was not shown to have any
relationship to the veteran's prison-of-
war experience.
3. The evidence received subsequent to
the final December 1984 Board decision
includes competent evidence of diagnoses
of coronary heart disease, and lay
statements from fellow POWs that the
veteran had swollen ankles, toes, legs
and knees during his period of captivity;
this evidence is relevant and so
significant that it must be considered to
decide fairly the merits of the claim.
4. The veteran's symptomatic coronary
heart disease was first shown decades
after active service; however, he is a
former POW who was interned for more than
30 days, he has an in-service history of
beriberi and localized edema while a POW,
and the evidence is in relative equipoise
as to whether he had ischemic heart
disease which materially contributed to
his death.
The Board concluded that the Board's 1994 decision had been
final, but had been reopened; and that ischemic heart disease
was presumed to have been incurred during the veteran's
captivity as a POW while on active duty, and thus the
criteria for service connection for the cause of the
veteran's death had been met.
The RO subsequently effectuated that grant of service
connection for the cause of the veteran's death.
The RO also subsequently granted the appellant's claim for
aid and attendance from November 3, 2003.
The appellant has now filed the current claim for accrued
benefits; it is from the denial by the RO of that claim that
the current appeal emanates.
FINDINGS OF FACT
1. Adequate evidence is of record for a resolution of the
current appellate issue.
2. A claim for VA benefits was not pending at the time of
the veteran's death in 1983.
CONCLUSION OF LAW
Accrued benefits are not warranted. 38 U.S.C.A. § 5121 (West
2002); 38 C.F.R. § 3.1000 (2005).
REASONS AND BASES FOR FINDINGS AND CONCLUSION
Criteria
Under the provisions of 38 U.S.C.A. § 5121 (West 2002), as
relevant here, a veteran's surviving spouse may receive
accrued benefits consisting of up to two years of due but
unpaid benefits to which the veteran was entitled at death
under existing ratings or decisions, or those based on
evidence in the file at date of death. 38 U.S.C.A. 5121
(West 2002); 38 C.F.R. § 3.1000 (2005). Applications for
accrued benefits must be received within one year after the
date of the veteran's death. 38 U.S.C.A. § 5121(c).
Under 38 U.S.C.A. § 5121(a), accrued benefits are defined as
"periodic monetary benefits to which an individual was
entitled at death under existing ratings or decisions, or
those based on evidence in the file at the date of death and
due and unpaid for a period not to exceed two years." See 38
C.F.R. § 3.1000(a) (2005).
The law applicable to the current claim provides in this
regard that although the veteran's claim terminated with his
death, the regulations set forth a procedure for a qualified
survivor to carry on, to a limited extent, a deceased
veteran's claim for VA benefits by submitting a timely claim
for accrued benefits. 38 U.S.C.A. § 5121 (West 2002); see
Landicho v. Brown, 7 Vet. App. 42, 47 (1994).
Thus, while the claim for accrued benefits is separate from
the claim for service connection filed by the veteran prior
to his death, the accrued benefits claim is derivative of the
veteran's claim and the appellant takes the veteran's claim
as it stood on the date of his death, but only within the
limits otherwise established by law. It has been repeatedly
held by the appellate courts that among these limits,
veterans' claims do not survive their deaths. See Zevalkink
v. Brown, 102 F.3d 1236, 1242 (Fed. Cir. 1996); Jones v.
West, 146 F.3d 1296 (Fed. Cir. 1998).
When all the evidence is assembled, VA is responsible for
determining whether the evidence supports the claim or is in
relative equipoise, with the claimant prevailing in either
event, or whether a preponderance of the evidence is against
a claim, in which case, the claim is denied. Gilbert v.
Derwinski, 1 Vet. App. 49 (1990).
Factual Background
Prior documentation is in the file for comparative purposes.
The veteran signed a VA Form 21-526 in July 1982 but did not
seek compensation for any specified disability. He was so
informed in a letter in September 1982.
The veteran thereafter submitted a claim for service
connection for disabilities acquired as a POW to include
hypertensive cardiovascular disease, osteoarthritis,
cataracts, PTB with anemia, malaria and hearing impairment,
as well as avitaminosis, arthritis and impaired vision.
In a rating action in March 7, 1983, his claim was denied.
The veteran was so informed in correspondence dated March 18,
1983.
In a letter from the veteran dated May 9, 1983 and received
May 11, 1983, he again sought entitlement to service
connection for avitaminosis, beriberi or hypertensive
cardiovascular disease and malnutrition and pension. The RO
informed him in a letter dated May 26, 1983 that, as he had
been previously informed, his claim had been denied including
considering his POW experience and that his service did not
qualify him for basic eligibility for nonservice-connected
pension benefits.
The next document of record in the file is a certificate of
death which was received on October 27, 1983, showing that
the veteran had died on September [redacted], 1983 due to
hypertensive cardiovascular disease, rule out diabetes
mellitus, with malnutrition and avitaminosis noted as
significant contributors.
In a cover letter from the appellant, dated October 17 and
received October 27, 1983, the appellant cited the veteran's
prior claim for service connection as a result of his POW
experience, and sought entitlement to burial benefits as his
widow. She was informed by the RO in correspondence dated
March 12, 1984 that she had no entitlement to benefits for
the cause of his death. She reiterated that her claim was
based on his POW experience. At no time concurrent therewith
did she seek any accrued benefit or claim that he had a claim
pending at the time of his death. She was repeatedly
informed of her lack of entitlement including in a formal
rating action by the RO in May 1984, of which she was
informed. This denial was confirmed by the Board in December
1984.
The appellant reopened her claim for entitlement to service
connection for the cause of the veteran's death on October
21, 1998. The actions described in the Introduction section
of this decision followed.
The appellant filed a claim for accrued benefits. She was
informed of the denial by the RO in a letter dated July 29,
2003.
Analysis
As will be noted from a review of the regulations cited
above, accrued benefits are payable only under certain
circumstances. The primary condition for such payment is
that there be a claim pending at the time of death, and that
monies are due to veteran.
In this case, there was no such claim pending. [This did not
in any way relate to her other claims, made subsequent to his
death, relating to burial benefits or for service connection
for the cause of his death, which have incidentally been
granted].
In this instance, where the law is the deciding factor and
the issue relates to basic entitlement, there is no doubt
raised and thus to be resolved in her favor. See Sabonis and
Gilbert, op. cit.
ORDER
Entitlement to accrued benefits is denied.
____________________________________________
JEFF MARTIN
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs